Chloe A. Holloway-George, School of Law, University of Nottingham
The Experiences of Autistic People in Police Custody
In England and Wales, autistic suspects are at risk of negative experiences in police custody which violate their human rights. During their interactions with custody staff, autistic people may encounter communication barriers which impact how they understand and answer police questions (Holloway-George et al., forthcoming; Holloway et al., 2020). They may also find it difficult to make sense of custody procedures due to a lack of accessible information (Holloway-George et al., forthcoming; Holloway et al., 2020). The sensory demands of the custody environment such as bright lights and loud noises may also cause autistic people to become overwhelmed (Holloway-George et al., forthcoming; Holloway et al., 2020). Together, these difficulties often lead to heightened emotional states, and create a desire to escape custody (Holloway-George et al., forthcoming; Holloway et al., 2020).
Although non-autistic suspects encounter similar difficulties (Skinns, 2011), autistic people can be prevented from accessing legal procedural safeguards, and their participation in the custody process can be significantly impacted. Autistic people may be discouraged from seeking legal advice, or disclosing they are autistic, as these difficulties can influence the decisions they make during the custody process (Holloway-George et al., forthcoming; Holloway et al., 2020). During the police interview, they may also be encouraged to acquiesce, or respond to questions in a particular way, leading to admissions of guilt (Holloway-George et al., forthcoming; Holloway et al., 2020). As such, autistic people can be prevented from accessing justice equally, in violation of the right to equal access to justice affirmed by Article 13 of the UN Convention on the Rights of Persons with Disabilities.
To protect the human rights of autistic people and ensure they can effectively participate in custody procedures, custody practices and the environment need to be more accessible. It is necessary to adjust custody practices by adapting communication and providing accessible information and the custody environment by reducing sensory demands (Holloway-George et al. forthcoming; Holloway et al., 2020). Providing appropriate autism training for custody staff would also be beneficial (Holloway et al., 2022). However, despite the need for adjustments being clear, few autistic people receive adjustments in police custody (Salvny-Cross et al., 2022). Autism training is also inconsistently provided (Beardon et al., 2018). The CJJI has recommended creating a ‘neurodiversity strategy’ to improve the support of neurodivergent people (CJJI, 2021). However, the Ministry of Justice has suggested reviewing whether existing policies could sufficiently facilitate improvements, or be expanded to address gaps (Ministry of Justice, 2022 and 2023). Therefore, to understand how best to facilitate effective access to justice, the extent to which the law supports autistic people, and provides scope for improvements, should be determined.
The Right of Access to Justice
Traditionally, access to justice has been interpreted as referring to two key parts of the legal system: 1) equality of access and 2) individually and socially just outcomes (Capelletti and Garth, 1978). Equality of access refers to a person’s right to fairly access the procedural aspects of the legal system including the right to have access to a lawyer (Blasi, 2009). However, some individuals can experience barriers which prevent them from participating in criminal justice processes in an effective way, and influence the outcomes achieved (Flynn and Lawson, 2013). Because of this, it is important to ensure that measures and safeguards are in place to mitigate these risks and address potential barriers to access. In England and Wales, the Police and Criminal Evidence Act 1984 provides legal protections for suspects in police custody. This is supported by Code of Practice C which provides guidance on the treatment of suspects in detention – although, this is not legally binding. The Equality Act 2010 also creates duties aimed at eliminating discrimination of people with protected characteristics such as disability (s 6 Equality Act 2010), including a Public Sector Equality Duty (s 149(1) Equality Act 2010). These duties apply to police forces (schedule 19 Equality Act 2010). In combination, this legislation provides a limited framework which supports, but does not secure, equality of access to justice for disabled people.
PACE requires detainees to have access to legal advice (s 58 PACE 1984). This is an integral part of access to justice, as it supports engagement with the custody processes and ensures suspects rights are upheld (s 58(4) PACE 1984). However, PACE only makes it a legal requirement to provide access to legal advice; it does not guarantee quality legal advice, or support detainees in exercising their right. This is problematic as legal advice can vary in quality, and detainees may not always understand the benefits of having a solicitor, or the consequences of waiving this right (Skinns, 2009). Although Code C states suspects should not be discouraged from seeking advice (para 6.4), detainees may feel encouraged to waive this right (Holloway et al., 2020; Skinns, 2009).
Code C states that detainees are entitled to be held in rooms which are adequately heated, lit and cleaned (para 8.2), provided with access to toilet and washing facilities (para 8.4.) and outdoor exercise (para 8.7). This to ensure detainees ability to engage in custody processes is not unfairly compromised by their unmet welfare needs. Beyond this, there is no consideration in Code C or PACE of the impact of the wider custody environment. Police officers are required by the Equality Act to make adjustments by removing any barriers to access or providing aids (s 20 Equality Act 2010). As such, they should make adaptations to the custody environment to reduce sensory demands. However, these duties are not absolute, as they are only required where it is ‘reasonable’ and where it is known (or should have been) the person was disabled (s 20 Equality Act 2010). As a result, police officers may not be required to make adjustments, or may not make them if they do not think the person is disabled.
Code C outlines that detainees are entitled to certain information (para 3.1(a)). This is to support detainees with effectively exercising their rights. However, Code C only requires limited information to be given such as the written notice outlining rights and entitlements (para 3.2); it does not require detainees to be informed about the custody process. Although an easy read notice can be provided (note 3A), there is also no mention of the need for other forms of accessible information. While the Equality Act requires accessible information to be given to disabled people (s 20(6) Equality Act 2010), this duty is also limited. Therefore, the duties to provide information to support participation appears somewhat discretionary.
Code C also makes specific provision for vulnerable people. Someone may be vulnerable where they have a mental health condition or mental disorder and may have difficulties understanding and communicating during custody processes, understanding the significance of what they are told or questions they are asked or their replies, or be particularly prone to confusion, suggestion or providing unreliable, misleading or incriminating information without knowing or wishing to do so (para 1.13). When an individual is identified as, or is suspected to be, vulnerable, they should have an Appropriate Adult (‘AA’) (para 3.15). AAs are intended to facilitate access to justice by supporting and advising detainees during custody procedures, facilitating communication and observing if police are acting fairly (para 1.7A). However, they are provided in few cases because of how custody staff interpret and apply the definition of vulnerability, particularly when suspects are autistic (Dehaghani, 2019). Although they should be present throughout various custody procedures (paras 3.1 – 3.5, 3.17, 10.12, 16.6 and Annex A, para 17.7 and 2B), their role is also often limited to the interview (para 11.15). In addition, there is a perception that the function of AAs is to protect the quality and integrity of evidence (s 67, s 76 and s 78 PACE 1984), as opposed to ensuring effective participation (Dehaghani, 2020). While AAs could be framed as an ‘accommodation’ (Dehaghani, 2022), the limitations of the role means it is unlikely to significantly facilitate access to justice without substantial revision.
Finally, there is a notable absence of a requirement to provide disability training in either PACE, Code C, or the Equality Act. Training is dependent on the discretion of individual police forces, and while there have been improvements, it leaves scope for gaps in provision. The delivery of autism training also varies in practice as a result (Beardon et al., 2018) and it means there is often a lack of resources to sustain delivery long-term. As such, the absence of a definitive legal duty to provide training is likely creating inconsistencies in delivery and compromising sustainability.
The Case for Reform
While PACE, Code C and the Equality Act aim to promote equal access to justice in England and Wales, how the law does so in practice is limited. To address the gaps in the law, it is clear the law should be reformed to explicitly promote access to justice in line with human rights law. This could be achieved by reforming PACE and Code C to clearly emphasise the need to make adjustments and provide appropriate training on disability and neurodiversity. The law should also be reformed to improve consistency between PACE and the Equality Act in their approach to supporting persons with disabilities and promoting equality including through revision of the definitions of disability and vulnerability. Finally, the Equality Act should also be reformed to strengthen the duties on reasonable adjustments and accessibility. Unless reform is seriously considered, autistic people will continue to be excluded from effective participation in the custody process and experience human rights violations. Although a separate strategy could facilitate access to justice for autistic people in police custody, reforming the existing law would help to embed access to justice more effectively, and improve accessibility and human rights protections for all detainees.
References
Beardon, L., Chown, N. and Cossburn, K. (2018). “First responders and autism”, in Volkmar, F. (Ed.), Encyclopedia of Autism Spectrum Disorders.
Blasi, G. (2009). Framing access to justice: Beyond perceived justice for individuals. Loyola of Los Angeles Law Review, 42(4), 913-948
Cappelletti, M. and Garth, B. (1978). Access to justice: The newest wave in the worldwide movement to make rights effective. Buffalo Law Review, 27(2), 181-292
Criminal Justice Joint Inspectorate. (2021). Neurodiversity in the Criminal Justice System: A Review of the Evidence (London: CJJI)
Dehaghani, R. (2019). Vulnerability in police custody: police decision-making and the appropriate adult safeguard (Oxford: Routledge)
Dehaghani, R. (2020). Defining the “appropriate” in “appropriate adult”: restrictions and opportunities for reform, Criminal Law Review, 12, 1137 – 1155
Dehaghani, R. (2022). Interpreting and reframing the appropriate adult safeguard. Oxford Journal of Legal Studies, 42(1), 187-206
Equality Act 2010
Flynn, E. and Lawson, A. (2013). Disability and Access to Justice in the European Union: Implication of the United Nations Convention on the Rights of Persons with Disabilities. European Yearbook of Disability Law, 4, 7-44
Holloway, C.A, Munro, N., Jackson, J., Phillips, S. and Ropar, D. (2020). Exploring the autistic and police perspectives of the custody process through a participative walkthrough, Research in Developmental Disabilities, 97
Holloway, C.A., Munro, N., Cossburn, K. and Ropar, D. (2022). A pilot study of co-produced autism training for police custody staff: Evaluating impact on perceived knowledge change and behaviour intentions, Policing: An International Journal
Holloway-George, C.A., Munro, N., Jackson, J. and Ropar, D. (forthcoming). Exploring the experiences of autistic people in police custody: Assessing the need for adjustments to improve participation in the custody process
Ministry of Justice. (2022). Neurodiversity Action Plan (London: Ministry of Justice)
Ministry of Justice. (2023). Neurodiversity Action Plan – January 2023 Update (London: Ministry of Justice)
Police and Criminal Evidence Act – Code of Practice C
Police and Criminal Evidence Act 1984
Skinns, L. (2009). ‘Let’s get it over with’: early findings on the factors affecting detainees’ access to custodial legal advice, Policing & Society, 19(1), 58-78
Skinns, L. (2011). Police Custody: Governance, Legitimacy and Reform in the Criminal Justice Process (London: Routledge)
Slavny-Cross, R., Allison, C., Griffiths, S., and Baron-Cohen, S. (2022). Are autistic people disadvantaged by the criminal justice system? A case comparison. Autism, 0(0)
UN Convention on the Rights of Persons with Disabilities
Defending Vulnerability 